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Wednesday, October 13, 2010

Hank Skinner had his say before the Supreme Court of the United States today. At least his attorney Rob Owen did. The Washington Times has the only article I found online. Here's the takeaway.

The defense wants to test additional evidence that could determine whether Ms. Busby was sexually assaulted and, if so, by whom. They also want testing done on two knives that his lawyers say were likely used to kill the two sons.

State courts in Texas have rejected Skinner's request, ruling his case doesn't meet the requirements of the state's laws regarding post-conviction DNA testing.

Skinner's lawyers say that's a violation of his constitutional rights and want the federal courts to require testing of the evidence. The state counters that Skinner wants to create a system in which federal courts serve "as appellate tribunals second-guessing the decisions of state courts."

The justices Wednesday seemed concerned about that possibility as Justice Antonin Scalia noted, "You had the opportunity to raise this in the state court, and now you are retrying what the state court did decide."

Justice Sonia Sotomayor was particularly sharp in her questioning of Skinner's lawyer, Robert C. Owen.

"Mr. Owen, I know I am pushing you," she said at one point, "but I really would like a clear statement of what the procedural due-process violation which you are claiming occurred here is?"

"Your Honor, our claim is that in its construction of the statute in the Texas Court of Criminal Appeals [the court] construed the statute to completely foreclose any prisoner who could have sought DNA testing prior to trial but did not from seeking testing under the post-conviction statute," he said. "That speaks too broadly."

While the justices expressed some skepticism of Mr. Owen's argument and the role of federal courts in the case, they also appeared cautious not to dismiss Skinner's claims out of hand.

"We've never had a case like this and it's conceivable to me that we have to expand [on previous rulings]," Justice Scalia said.

Recall that it was Scalia who halted Skinner's execution 45 minutes before it was too late. Recall also that I have mocked him for his predicted wrongful conviction rate of 0.027%. Recall finally, his famous words.

It should be noted at the outset that the dissent does not discuss a single case -- not one -- in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.

I'm sure those words are ringing in his ears. I'm sure also he's aware of the impending publication of The Skeptical Juror and The Trial of Cameron Todd Willingham. I'm sure finally he's aware that I have already FACTUALLY EXONERATED! Hank Skinner.

I have no idea when they might make their ruling. In all seriousness, I hope they decide wisely.

Thursday Morning Update:
Here's a more informative article on yesterday's hearing. According to that report, SCOTUS could hand down its ruling any time between December and March.

In briefs filed before oral arguments on Wednesday, Skinner’s lawyers argued that his lawsuit should proceed because the DNA testing he seeks would not necessarily result in the overturning of his sentence. If the high court allows Skinner’s case to proceed, a lower federal court would decide whether to allow the testing — and even if that were to happen, there’s no guarantee that the DNA test results would be exculpatory. If they were, Skinner would then have to go through another legal process to be exonerated. “It does not necessarily imply … the conviction is lawfully invalid,” Owen told the justices. The way the Texas Court of Criminal Appeals interpreted the state post-conviction DNA law, Owen says, would bar anyone who didn’t have evidence tested at trial from doing so subsequently, and that violates due process.

Coleman, Switzer's attorney, argued in his brief that Skinner’s request must be a habeas proceeding because it ultimately seeks to undo his death sentence. Under Texas post-conviction DNA testing law, he argued, Skinner cannot reject testing at his original trial — a legal strategy meant to protect the defendant at the time — and then later claim he was deprived of a right to analyze the evidence. (Skinner has claimed that his original trial lawyer declined the tests against his wishes.) Allowing a federal court to reverse state court denials of the DNA testing would make the federal courts the overseers of state DNA laws — a situation that Congress has been careful to avoid, Coleman argued, by allowing states to decide their own post-conviction DNA testing laws. Skinner should not be able to sue Switzer to get the DNA, he said, because the DA is simply carrying out the law passed by the Texas Legislature.

In the courtroom, Justice Antonin Scalia questioned whether the high court ought to intervene in the Texas courts’ interpretation of state DNA testing laws. “It's up to them how they want to interpret it. We don't reinterpret state statutes because the state Supreme Court interpreted it strangely,” he told Skinner’s attorney. And the justices pressed attorneys on both sides to specify what criteria ought to be used to differentiate a habeas corpus case from a "1983" civil rights case if the eventual result of both is to alter the conviction. The question in the Skinner case presents something of a Catch-22, Justice Stephen Breyer pointed out. “He thinks [the DNA is] going to be exculpatory. He doesn’t know that until he gets it,” Breyer said. “Getting the DNA does not necessarily spell speedier release; it all depends on what that DNA shows.”

The attorneys general of nearly two-dozen states, including Texas, Oklahoma and Colorado, submitted a brief supporting Gray County DA Switzer in the Skinner case. They argue that if the court were to allow Skinner to seek a federal court’s approval for DNA testing, it would undermine post-conviction DNA laws in 48 states. “Sound principles of federalism and judicial restraint demand that this Court reject Skinner’s invitation,” the attorneys general wrote. A ruling in Skinner’s favor, they said, would also invite hundreds of inmates to file similar litigation, overtaxing scarce state funds. But Owen said that was unlikely to happen: In states that do allow civil rights lawsuits for those seeking DNA evidence, he argued, inmates have not flooded the courts with lawsuits. “It’s going to be a safety valve for highly unusual cases like our case,” he said.

Skinner’s daughter, Natalie Skinner, and his wife, Sandrine Ageorges-Skinner, were among the observers at the proceedings Wednesday. Outside the court, Natalie, with tears in her eyes, remembered the relief she felt in March when the court spared her father’s life at the last minute and agreed to take up his case. “I’m just happy for the opportunity,” she said. “But it’s not about how I feel. It’s about the legal issues of the case.”